the drug profile, and that each statement, taken alone, may be innocent. However, neither of these factors are dispositive. Circumstances must be viewed as a whole, and even innocent acts, taken together, may form the basis for reasonable suspicion. Sokolov, 109 S. Ct. at 1586-87.
Here, Morgan's explanation for carrying a large sum of cash was inherently suspicious, since he could offer no corroboration that he was in the gem business, despite representing that he was traveling on gem business. Further, it was very suspicious that the money was in an envelope addressed to somewhere else. The explanation that any "remaining" money was to be mailed to his attorney is inherently implausible as people do not generally send large sums of cash through the mail in connection with legitimate business. Further, Morgan changed his answers as questioning continued with regards to the amount of money present, who the money belonged to, and when the money had been obtained. It is particularly suspicious that Morgan stated he was carrying maybe $ 20,000 after saying the amount was $ 15,000, as it is unlikely that a person would not know, within $ 5,000, the amount of cash being carried for business purposes. It is also unlikely that a person on legitimate business would change his answer as to who the money belonged to and be unable to recollect when such a large sum had been obtained. Taking all the circumstances together -- the implausible, evasive, and shifting answers, and the large sum of cash
-- we conclude that the agents had a reasonable suspicion that some criminal activity may have been afoot. Accordingly, we find that the initial detention of Morgan's bags was not improper.
4. Detention of Morgan's bags -- excessive duration
While Place, supra, extended the Terry stop doctrine to a person's luggage, the Court made clear that to comply with Terry the detention of the luggage must be brief. "The brevity of the invasion is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion." 462 U.S. at 709, 103 S. Ct. at 2645; id. at 710, 103 S. Ct. at 2646 (police have "narrow authority" to "detain briefly luggage reasonably suspected to contain [contraband]"). The Court concluded that detaining luggage for 90 minutes before submitting it to a dog sniff test was per se unreasonable, id. at 710, 103 S. Ct. at 2646 (90 minute detention "sufficient to render the seizure unreasonable"),
but declined to specify an outside time limit. Id. The Supreme Court subsequently upheld a 20 minute "Terry stop" luggage detention in United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605 (1985), because the police had acted "diligently" and the suspect's actions contributed to the delay. Id. at 688, 105 S. Ct. at 1576.
In addition to imposing time constraints, Place also emphasized that the agents had failed to accurately inform Place of the location to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangement would be made for return of the luggage if the investigation dispelled the suspicion. Id. Such failures, the Court stated, exacerbated the violation caused by the excessive 90 minute delay. Subsequent decisions suggest that compliance with these guidelines regarding the return of seized luggage significantly impacts the validity of a detention. See, United States v. Erwin, 803 F.2d 1505, 1509 (9th Cir. 1986) (where agents abided by Place guidelines regarding return of luggage, seizure of luggage required only reasonable suspicion, not probable cause); see also, $ 124,570, 873 F.2d at 1248, n. 9; United States v. West, 731 F.2d 90, 92 (1st Cir. 1984), cert. denied, 469 U.S. 1188, 105 S. Ct. 956, 83 L. Ed. 2d 963 (1985).
Here, Morgan contends that the luggage was detained for approximately two hours before being subjected to a dog sniff, and that the other guidelines concerning return of his luggage were violated as well. As discussed below, we find both of these contentions meritorious.
Length of Detention
Agent Buckwalter's report on the incident states that the dog sniff took place at 3:20 p.m. (approximately two hours after the bags were detained at approximately 1:15 p.m.). Govt's Exh. 4. Buckwalter was present at the dog sniff. Buckwalter's affidavit in support of the search warrant, prepared the day of the seizure, also lists the time as 1520 hours. Gov'ts Exh. 5 at 6. Attached to the search warrant application is a handwritten statement by Agent O'Malley, who conducted the dog sniff, that also sets the time at 3:20 p.m. Id. At his deposition, Agent O'Malley again reiterated the 3:20 p.m. time for the dog sniff.
The government, however, contends that the dog sniff actually took place 45 to 60 minutes after the bags were detained (at 2:15 p.m.), based on a correction that O'Malley made to his deposition on January 17, 1991 (almost one year after the incident), wherein he states that "I wrote the statement at approximately 3:20 p.m. but I physically worked Scoop on the bags at approximately 2:15 p.m." Govt's Appendix of Deposition Testimony. The reason O'Malley provided for making the time correction was as follows: "Reason: I recalled that after working Scoop on the bags that I went into the CNTF Office to make some phone calls and to write the statement regarding the dog alert." Id., see also, Michael, Decl., Exh. P.
We agree with Morgan that this "correction" to O'Malley's deposition deserves little credence. Not only is it remote in time from the incident, and contradictory to all other statements concerning the time of the dog sniff, including statements under oath, but, as counsel for the government conceded at argument, the reason given above for the time change is a non sequitur that fails to explain the basis for O'Malley's revision.
Moreover, O'Malley's subsequent efforts to justify the time change only increase its suspicious character. O'Malley drafted a separate three page statement, dated February 29 (twelve days after making the original corrections to his deposition), which gives a different reason for the time mix up: that he now remembers that he wrote the report at 3:20 p.m. because he wanted to get Scoop back to his kennel for his feeding time which usually takes place between three and four p.m. This statement, which was apparently only provided to the U.S. attorney at the time, see 2nd Michael Decl., again does not explain why the sniff must have been at 2:15 p.m.. Presumably, even a 3:20 p.m. sniff would have enabled Scoop to arrive for a 4:00 p.m. feeding. Moreover, there is no explanation why O'Malley decided to provide an additional explanation concerning the matter twelve days after having already made and sent his corrections to the court reporter.
Accordingly, we find that Morgan has demonstrated, by a preponderance of the evidence, that the dog sniff occurred at 3:20 p.m. As such, the two hour delay clearly exceeds the 90 minute delay found impermissible in Place.
The government argues, however, that even should we find a two hour time lapse, such lapse should not be considered fatal because the agents acted diligently and conducted the dog sniff as soon as they could. The government, however, relies on inapposite cases involving detention of mail.
Moreover, while diligence is highly relevant to disputes involving shorter detentions, see e.g., United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605 (1985) (20 minute detention), we read Place as holding that at a certain point, the time lapse becomes so excessive that the detention can no longer be justified as a "brief Terry stop," regardless of the officer's diligence. Thus, we conclude that the two hour delay renders the detention invalid regardless of diligence.
Even assuming, however, that diligence enters into the equation, the record reflects a distinct lack of diligence in this case. The agents concerned knew that Morgan would be arriving in Oakland well before his actual arrival. Yet, the only reason O'Malley (reachable by beeper) was not at the Oakland airport or nearby was because he was "busy" practicing with Scoop in a park. He was not indisposed with another dog sniff nor acting under any constraint that would have precluded travel to the Oakland airport. Under these circumstances, it is clear that agents were not acting diligently, and that the resulting delay was clearly avoidable. Indeed, even assuming arguendo that the dog sniff took place at 2:15 p.m., it is questionable whether this delay would pass muster under Place and Sharpe under the circumstances presented here. See United States v. West, 731 F.2d 90, 92 (1st Cir. 1984), cert. denied, 469 U.S. 1188, 105 S. Ct. 956, 83 L. Ed. 2d 963 (1985) ("Clearly, the government must have its dog either at the same airport or at a similarly accessible location, so that the dog can sniff the suspect's luggage with dispatch ") (emph. added); Place, 462 U.S. at 709, 103 S. Ct. at 2645-46 (noting that the agents knew of Place's impending arrival at the airport, and thus could have arranged for investigation at the airport, which would have minimized the intrusion).
Guidelines concerning return of luggage
In addition to violating the time constraints imposed by Place, the agents failed to comply with the Supreme Court's guidelines concerning the return of seized luggage. They did not accurately inform Morgan of the place to which they were transporting his luggage, the length of time he might be dispossessed, or what arrangement would be made for return of the luggage if the investigation dispelled the suspicion. Rather, according to Buckwalter's report and deposition all he did was provide Morgan with a telephone number where he could be reached, give him a receipt for the bags, and tell him he was "going to have the bags for a period of time." Gov'ts Exh. 4; Buckwalter Depo. at 64-65. He did not tell Morgan where he was taking the bags, id., the length of time they would be detained, nor make any specific arrangements for their return.
In sum, we conclude that approximately two hours elapsed between the seizure of the Morgan's luggage and the dog sniff, and that this delay rendered the seizure invalid under the fourth amendment in light of Place and its progeny. As in Place, this violation was exacerbated by the failure to comply with Place's guidelines governing the return of seized luggage. Finally, to the extent that the agents' diligence is a factor, we find that the agents were not diligent and that the circumstances did not justify the lapse of time between the detention and the dog sniff, whether it occurred at 2:15 p.m. or 3:30 p.m.
5. Invalidity of Search Warrant
Finally, Morgan contends that the search warrant was so lacking in indicia of probable cause to render official belief in its existence entirely unreasonable. We need not reach this issue, given our conclusions above. However, we note that Morgan simply states that a positive dog sniff is insufficient, by itself, to establish probable cause. This assertion, however, is irrelevant since the warrant was not based on the dog sniff alone, but on a whole chain of events and circumstances. Moreover, courts have expressly stated that a positive dog sniff is "strong evidence" toward a showing of probable cause. U. S. v. $ 215,300, 882 F.2d 417, 419 (9th Cir. 1989), cert. denied, 110 S. Ct. 3242, 111 L. Ed. 2d 752 (1990); United States v. Quinn, 815 F.2d 153 (1st Cir. 1987). Morgan cites no authority to the contrary, and his challenge to the warrant appears meritless.
Accordingly, and good cause appearing, it is HEREBY ORDERED that:
1. The government's motion to dismiss for lack of standing is DENIED.
2. The claimant's motion to suppress is GRANTED IN PART and DENIED IN PART as set forth above. All tangible or intangible evidence seized or obtained from claimant's luggage, after it was detained by Agent Buckwalter at the Oakland Airport on March 14, 1990, is SUPPRESSED as evidence in this action. The motion is otherwise denied.
IT IS SO ORDERED.